I-601A Unlawful Presence Waiver


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What is the I-601A Unlawful Presence Waiver?

Immigrants who entered without inspection or overstayed a visa may waive their inadmissibility, i.e. the 3/10 year bar, by filing Form I-601A “Provisional Unlawful Presence Waiver.” The law, which became effective March 4, 2013, allows applicants to file the waiver stateside, thus avoiding the risk of getting stuck in their home country while waiting for a decision on the waiver application.

Originally, the waiver was only available to those immediate relatives whose sole ground of inadmissibility involved unlawful presence under section 212(a)(9)(B)(i) of the Immigration and Nationality Act. If you have any questions in regard to this, you should contact a Miami immigration lawyer for a consultation.

How has this rule changed?

Under the new rule, effective August 29, 2016, USCIS may grant a provisional waiver to foreign nationals if they are statutorily eligible for an immigrant visa and for a waiver of inadmissibility based on unlawful presence.

The rule also expands who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents as opposed to the old rule allowing for only U.S. citizens spouses or parents to serve as qualifying relatives. If you have any questions in regard to this, you should contact a Miami immigration attorney for a consultation.

Who Can Apply?

  • Immigrants Who:
    • Are married to a U.S. Citizen or Lawful Permanent Resident, or have a U.S. Citizen parent
    • Have been approved on Form I-130
    • Are currently in the United States
    • Can prove extreme hardship to a U.S. Citizen or Lawful Permanent Resident Spouse or Parent

Who Can Not Apply?

  • Immigrants Who:
    • Have certain criminal convictions (which can be determined by the Attorney)
    • Have committed fraud, such as using an altered passport or birth certificate
    • Have been ordered removable by an Immigration Judge (unless a separate waiver is granted before filing)
    • Have already been scheduled for an interview at a Consulate

Why is the expansion for the unlawful presence waiver important?

This rule change is a huge plus for foreign nationals who are not immediate relatives of U.S. citizens, and who until this point have been unwilling to take the risk of completing the waiver application process abroad. Under the new federal regulations, all statutorily eligible immigrant visa applications, whether though family-based petitions or employment-based petitions would be eligible for this expanded stateside unlawful presence waiver.

If you have any questions in regard to this, you should speak with a Miami immigration lawyer.


What Happens After an I-601A Waiver is Approved?

Once an I-601A provisional waiver is approved, the next step for immigrant visa applicants involves proceeding with their immigrant visa case. The approval signifies that the applicant’s unlawful presence in the U.S., which could have led to extreme hardship, is conditionally excused.

The applicant, with an approved immigrant visa petition, must pay the immigrant visa fee receipt and prepare for the immigrant visa interview. They must attend this interview in their home country, as they cannot adjust their status while physically present in the U.S.

If the interview is successful, the applicant can become eligible to enter the U.S. as a lawful permanent residents, with their immigrant visa case pending.

Fraud Waivers

You are inadmissible if you, by fraud or willful misrepresentation of a material fact, have sought to procure, or have procured a visa, other documentation, or admission into the US or other benefit under US immigration laws. You may have omitted certain information on a previous application for a visa or a green card.

You may have failed to reveal that you were married, or you may have provided fraudulent documentation to immigration. The possibilities are endless. Fraud is lifetime bar to remaining in the US. If you believe you may be charged with committing a fraud on an immigration application, be sure to consult with a Miami immigration lawyer or Florida immigration lawyer.


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